In a lawsuit filed on February 6 in the U.S. Court of Appeals for the District of Columbia, developers working on construction sites with multiple contractors have alleged that they should not be liable when another contractor causes a violation of the project's NPDES stormwater permit. Historically, multiple operators at a single site are required to obtain individual permits, but share responsibility for compliance for the entire project. The suit argues that the joint and several liability language of the construction permit makes all contractors responsible for each other's permit violations even when the contractors have no control over the operations of the other. Industry representatives have argued that the provision is both "illegal" and "unworkable" since operators often work on a site at different times and cannot legally or physically control the activities of the others. To date, there is no response from the EPA regarding the challenge to the NPDES permit which is expected to be adjudicated later this year.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.